Are There Different Types of Probate in Arizona, and What Steps Are Required?

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Douglas J. Newborn - Estate Planning & Probate - Super Lawyers

Answered by: Douglas J. Newborn

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In Arizona, the process for administering someone’s estate depends on several factors. One of these is whether there was a valid Will. Another is whether ownership of key assets was transferred outside of probate by using a trust or some other form of transfer on death designation. For estates less than a certain amount, filing a small estate affidavit may avoid the probate process. 

For estates that do go through probate, the first step is the appointment of a personal representative. Once that is done, the personal representative must properly notify creditors, respond to their claims, and work with an accountant to finish the deceased person’s personal tax return (and possibly an estate tax return).  Ideally, the personal representative will resolve the creditors’ claims and taxes before distributing assets to beneficiaries.  

Was There a Valid Will? 

Probate involves submitting to a process overseen by a Court in which a deceased person’s Will is carried out.  If there is no Will, then the personal representative will have to distribute the assets per Arizona’s intestacy laws. There are four types of probate filings: Formal (no Will); Formal (with Will); Informal (no Will); and Informal (with Will).  There’s also the Special Administration route, but that’s a unique situation and is beyond the scope of this article. 

  • Formal probate (with or without a will)

A formal probate requires a hearing before one of the probate commissioners, or in some cases in front of the presiding probate judge, before the personal representative can get appointed. Although there’s other reasons for a probate to proceed formally, a formal probate typically happens if there’s no Will and/or not all of the heirs agree who should be the personal representative.  If there’s no Will but the heirs agree with who will be the personal representative, then you can usually file informally.

  • Informal probate (with or without a will)

When there’s an original Will and the person listed in the Will is filing to be the personal representative, or if everyone agrees on who should be the personal representative, then the probate can be filed informally. This means that a judge is not involved in appointing the personal representative and there’s no court hearings unless someone objects to some part of the process after the informal filing has already occurred.  If someone was appointed informally and then someone objects or files a petition asking for relief from the court, then the informal probate automatically becomes a formal probate.

Even if probate is not required, however, there are times when family members or creditors may choose to use the probate process. In some circumstances, it may make sense to do this in order to extinguish certain creditors’ claims against the estate, or to achieve other goals such as verifying property ownership. 

Small Estate Affidavit 

If the estate is valued at less than a certain amount, it is possible to avoid the formal and informal probate processes by filing a small estate affidavit. Arizona law defines small estates as those with less than $75,000 in personal property (coins, artwork, cars, cash, etc.) and $100,000 in equity in real property.

Phases of the Probate Process 

There are three phases to the probate process: (1) appointment; (2) collect assets and transfer other assets to the estate, pay debts, and distribute assets; and (3) closing the estate.

The first phase of the probate process involves the appointment of a personal representative. In some cases, an heir or other interested party may object to the appointment. If that happens, the appointment will be put on hold until the court can resolve the dispute.  If the probate is informal, you can be appointed in a couple days after the paperwork gets submitted to the court.  If you file formally, you’ll have to wait approximately 5-6 weeks for a hearing before you can get appointed. 

Once a personal representative is appointed, they will open an estate bank account and transfer estate assets as directed by the Will or laws of intestacy.  At the same time as transferring the estate property, the personal representative must give notice to creditors and deal with their claims. There will also be taxes to file, preferably with the assistance of an accountant.  The creditor claim phase takes a minimum of 4 months by statute and the property, both real and personal, can usually begin to be transferred during this time. 

Once debts and taxes have been paid, the personal representative distributes the remaining property to the beneficiaries.  In most situations, it is possible to do a partial distribution to the heirs before the 4-month creditor window is over, although there’s always the risk of an unknown creditor.

After creditors’ claims are dealt with and all the property is transferred and/or distributed, we close the estate.

Normally, provided nobody objects to anything and allows the personal representative to proceed without delay, the whole probate process takes, from appointment of the personal representative to filing the closing paperwork, about 6 months.  This doesn’t mean that you have to wait 6 months to transfer the property and give any distributions, it just means that the court process usually takes 6 months.  If you have any questions about the probate process, please give us a call.  Mention this article and get $50 off a small estate affidavit or $100 off a probate.

Planning Ahead: Probate vs. Trusts and Other Tools 

If you know that you yourself have over $75,000 in personal property or $100,000 in real estate equity, it often makes sense to try to avoid probate in the future by setting up a Trust.  A Trust is a legal entity, like a business, where you can title your real property and vehicles into the name of the Trust and place your Trust as the last pay on death beneficiary for your life insurance, bank, and investment accounts (see a tax advisor for tax implications of using the Trust as the last pay on death beneficiary).  This will make your assets pass outside of probate and, if done properly, will avoid any type of probate for you in the future.  

Another possibility for passing title to property outside of probate is the use of joint tenancy, especially by spouses. If spouses jointly own property and one of the spouses dies, full ownership passes to the surviving spouse.  If you have any questions about estate planning, please give us a call.  Lastly, mention this article and get $50 off our Will package or $100 off our Trust package.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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